Summary: We found fault and service failure by the Council on Mr Y’s complaint about it failing to transfer him and his large family from his accommodation which it accepted was unsuitable. The Council failed to consider the suitability of the accommodation sooner when alerted to problems. It delayed carrying out an assessment and failed to identify it as unsuitable initially under its complaints procedure. The Council agreed to send Mr Y a written apology for the identified failures, pay £2,250 for the injustice caused living in unsuitable accommodation for 15 months, and will ensure officers explore, and keep under review, whether a household in temporary accommodation is statutory overcrowded when overcrowding is raised as a concern. This remedies the injustice caused.

The complaint

1. Mr Y complains about the Council failing to transfer him and his family from his three bedroom temporary accommodation, where they were overcrowded: as a result, all eight members of his family continue to live in accommodation that does not meet their needs.

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The Ombudsman’s role and powers

2. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(1), as amended)
3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. We may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

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What I have and have not investigated

7. Mr Y had a right of appeal against any decision that his temporary accommodation was suitable for him and his family. I am satisfied there was no point him exercising this right when the Council accepted it was unsuitable. This means I am also satisfied we had jurisdiction to investigate this complaint.
8. As Mr Y complained to us in May 2025, I investigated his complaint only from May 2024. This is because any complaint about events before that date are ‘late’ and the law says we cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. I saw no good reason to exercise discretion to investigate any late complaint he may have.

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How I considered this complaint

9. I considered all the evidence provided by Mr Y, along with the Council’s response to my enquiries, as well as relevant law, policy, and guidance. I sent a copy of my draft decision to Mr Y and the Council. I considered the Council’s response.

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What I found

Relevant law and guidance

Homelessness

10. Part 7 of the Housing Act 1996 and the Homelessness Code of Guidance for Local Authorities (the Code) set out councils’ powers and duties to people who are homeless or threatened with homelessness.
11. If a council is satisfied an applicant is homeless, eligible for assistance, and has a priority need, it has a duty to secure accommodation is available for their occupation. This is called the main housing duty. (Housing Act 1996, section 193)
12. The law says councils must ensure all accommodation provided to homeless applicants is suitable for the needs of the applicant and members of his or her household. This duty applies to interim accommodation and temporary accommodation provided under the main housing duty. (Housing Act 1996, section 206 and the Code, paragraph 17.2)
13. Councils have a continuing obligation to keep the suitability of accommodation under review, and to respond to any relevant change in circumstances which may affect suitability, until the accommodation duty is brought to an end. (the Code, paragraph 17.8)
14. Applicants can ask a council to review its decision the accommodation offered is suitable. Councils must complete the review within eight weeks of receiving the review request. (Housing Act 1996, sections 202)

Statutory overcrowding

15. Statutory overcrowding is defined in the Housing Act 1985 (sections 324-327).
16. When assessing whether a property is statutory overcrowded, rooms are counted. Rooms which an applicant is considered could use for sleeping in, includes bedrooms, living and dining rooms, box rooms, and studies, for example. In some circumstances, a large kitchen might count as well.
17. Only one of the following has to apply for there to be statutory overcrowding where:

• two people have to sleep in the same room, and they are not a couple and are of a different sex.
• there are fewer rooms than needed for the family/household. This involves counting the number of people which means: 1 x person (anyone aged 10 or over); 0.5 x person (children aged 1-9); 0 x person (babies under 12 months).
• the rooms are too small, even if there are enough rooms. Rooms below 4.65 square metres do not count. The floor space will decide the highest number of people allowed in each room.

Council Housing Allocation Scheme (2024)

18. The Council assesses the size of home an applicant needs according to their household size and composition, and any other special considerations. Applicants normally bid for and/or be offered a property of the allowed property size. Sizes are expressed by number of bedrooms. The allowed property size is calculated as:

• One bedroom for an applicant and partner;
• One bedroom for any adult over 21 in the household, unless disregarded;
• One bedroom for two children or adults of the same sex aged under 21;
• One bedroom for two children of different sexes under 10; and
• One bedroom for any child or adult under 21 who cannot be paired in the above way.

19. For applicants with one child under 12 months, the allowed property size is a one bedroom property.
20. Applicants are placed in one of four bands with Band A (for example, those who fall within ‘Emergencies’ which includes statutory overcrowded Council tenants) having the highest priority applicants and Band D, the lowest.
21. Band B is for households which are severely overcrowded (lacking two bedrooms) and homeless households which are owed the full housing duty.
22. If an applicant meets the criteria for more than one band, or level within it, the highest will usually apply.

What happened

23. In June 2020, the Council provided Mr Y with interim accommodation after he presented as homeless. The same year he was moved to his current three bedroom property which was intended to be short term while it carried out enquiries.
24. In July, it accepted it owed him the main housing duty. His accommodation was now section 193 temporary accommodation. Since placing him in it, Mr Y had two more children.
25. In July 2024, Mr Y, who has various health problems, applied to go on to the Council’s transfer list. This was because he lived with his eight family members in a three bedroom property and believed they needed five bedrooms. I have not seen a copy of this application. The Council confirmed he was placed on the transfer list because of concerns about overcrowding.
26. Mr Y sent the Council his initial complaint in October as he had been on the housing list for five years and remained in unsuitable overcrowded accommodation.
27. In its stage 1 response to his complaint, the Council confirmed the family had high priority need but were in the correct banding. It explained while he needed to bid for properties, there was a shortage, especially of the type he needed. It asked him to complete a medical assessment form as it had no medical referrals for him. Due to health issues, the Council later placed him in Band B, category 3, for level access accommodation.
28. In its response to our enquiries, the Council accepted it should have upheld his complaint at this stage as a service failure. This was because it accepted he was living in unsuitable accommodation. It confirmed he lived in unsuitable accommodation from November. It would refer the issue to the complaints team as a learning and improvement matter.
29. In December, the Council sent him its stage 2 response to his formal complaint. The Council said he was in a four bedroom property but needed five bedrooms. This meant it was already considered unsuitable for him. Its temporary accommodation team were looking for alternative accommodation for him but, five bedroom properties were rare which could mean a long wait until one became available.
30. The Council accepted a formal assessment of his concerns about overcrowding was not completed until an inspection in September 2025. This found he was statutorily overcrowded by one person. The Council did not count anyone under 12 months old as they were excluded from such calculations. I have seen a copy of these calculations and the room sizes with the highest number of people allowed to sleep in them. This took account of the living room plus the three bedrooms.
31. In response to my draft decision, the Council noted Mr Y was not entitled to an award of Band A. This band is for Council tenants only. Mr Y was not a Council tenant within the meaning of its allocation scheme.
32. In October, he was matched to a direct offer of permanent accommodation.
33. The Council confirmed it was reviewing its own housing stock and working with registered housing providers to ensure available larger properties were allocated efficiently. It is also developing new larger homes through its own initiatives and partnerships with developers and housing associations. It was exploring opportunities to lease, or acquire, suitable properties from the private sector. It was also including, in its housing strategy, the demand for larger homes to guide future acquisition and development priorities.

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My findings

34. I found the following on this complaint:
1. The evidence showed Mr Y alerted the Council to his home being unsuitable and overcrowded in July 2024 when he made his application to join the transfer list. The Council accepted he was placed on the list because of concerns about overcrowding.
2. When alerted, there was no evidence to show what the Council did to explore whether he was statutory overcrowded. It failed to explore this properly until it carried out a formal assessment 14 months later. When this was done, the inspection found the property overcrowded by one person. The evidence showed the inspection results would have been the same had it been done in 2024.
3. I am satisfied these failures were fault and caused Mr Y an injustice. On balance, I consider there was a lost opportunity to have the Council consider whether he was statutory overcrowded sooner and its impact on the property’s suitability.
4. In October 2024, Mr Y sent the Council a complaint and again raised the issue of being overcrowded. Again, there was no evidence showing the Council explored whether he was statutory overcrowded. I am satisfied this also caused some injustice to Mr Y as this was another lost opportunity for the Council to have considered the issue of overcrowding. It also caused him some frustration.
5. The Council accepted it failed to conclude the property was unsuitable when it sent him its stage 1 response in November. There was nothing to show the Council considered this at this stage. This was fault and caused Mr Y injustice. It was another lost opportunity to consider the overall suitability of the property.
6. The Council should have considered the property’s suitability sooner than it did and kept it under review. It was alerted to the problem with overcrowding in July 2024. I am satisfied the failure to move Mr Y to more suitable accommodation was a service failure. This caused him injustice as he lost the opportunity to be considered for a move which left him living in unsuitable accommodation for 15 months.

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Action

35. I considered our guidance on remedies. I also took account of the delay to carry out an assessment to identify whether he was statutory overcrowded.
36. The Council agreed to carry out the following action within four weeks of the final decision on this complaint:
1. Send a written apology to Mr Y for the injustice caused by its failure to: explore whether he was overcrowded and living in unsuitable accommodation sooner than it did; carry out an assessment of his home sooner to see whether he was statutorily overcrowded; consider whether he should be in a higher banding under its housing allocation policy because of its failures; identify the property was unsuitable at stage 1 of its complaints procedure; keep its suitability under review.
2. Pay £2,250 (£150 x 15 months in unsuitable accommodation) to Mr Y for the injustice caused.
3. Ensure relevant officers are aware of the need to explore whether a household is legally statutory overcrowded when an applicant in temporary accommodation raises overcrowding as a concern.
4. Provide evidence the failure at stage 1 of the complaints process to identify this as unsuitable accommodation was addressed.
5. Ensure relevant officers are aware of the need to keep under review the ongoing suitability of temporary accommodation when overcrowding is raised by an applicant.
37. The Council should provide us with evidence it has complied with the above actions.

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Decision

38. I found fault and service failure on Mr Y’s complaint against the Council. The agreed action remedies the injustice caused.

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Investigator's decision on behalf of the Ombudsman